The status of convicted killer Sean Ellis’s motion for a new trial, which is based on his contention that during his trial in 1995 prosecutors did not, as required, turn over to his defense counsel exculpatory information about third-party suspects, is approaching a watershed moment.
In their bid to allow the thrice-tried Ellis a fourth opportunity to rebut the prosecution in the case of the gangland-style murder of Boston Police Det. John Mulligan, Ellis and his attorney, Rosemary Scapicchio, are also asking Superior Court Judge Carol S. Ball to consider whether new evidence uncovered after his conviction would have caused the jurors who sent him to prison to return a different verdict.
Some of this evidence is contained in Boston Police Department documents that defense lawyers unsuccessfully tried to access on several occasions, beginning in 1994. Judge Ball ordered their release to Scapicchio last August.
Ellis was 19 at the time of the crime and has served 21 years of his sentence of life without parole while continuing to maintain his innocence.
In the latest chapter of the long-running case, Ball presided over three days of testimony early last week wherein Scapicchio and Suffolk County Chief of Homicide Edmund Zabin interrogated Ellis’s trial lawyers, Norman Zalkind and David Duncan; Sgt. Det. Daniel Keeler, who was a member of the Boston Police investigative team; and retired District Court Judge Phyllis Broker, who was the chief prosecutor during Ellis’s three trials, the first two of which resulted in hung juries.
The judge is expected to hear one more witness, on Dec. 10, before taking the case under advisement.
Scapicchio claims that prosecutors failed to turn over to the defense un-redacted police reports of telephone hotline tips, some half dozen of which named specific individuals with motive and intent to murder Mulligan, and also a tip conveyed by task force Detective George Foley that a fellow Boston officer, Ray Armstead, Sr., had plotted to kill Mulligan out of anger over advances the detective made to his 14-year-old daughter. Foley’s tip was given no credence by Sgt. Det. Keeler, who testified that he questioned Foley and, because of his “deteriorating condition,” recommended that he be stripped of his gun and badge and sent for a 30-day psychiatric evaluation.
Zalkind and Duncan each testified that they had received no information from prosecutors about third-party suspects. Having now reviewed the tips, they characterized them as “spectacular” and “sensational” and said they “absolutely” would have followed them up by filing for further discovery and sending out an investigator. “This [case] was a cause celebre,” Zalkind said, recalling the high tensions in the city around Mulligan’s murder. Of Foley’s information, he observed, “This would have been huge publicity: One cop killing another?”
The state continues to maintain that all tips in question were turned over to defense counsel. Judge Broker testified by video that, although she had no memory of delivering specific documents as the prosecutor, her handwritten circle around the Foley report number, in particular, indicated she’d done so, in accordance with her unwavering policy of “when in doubt, give it out.”
Yet, Zalkind testified, “They fought me tooth and nail” over discovery information, and in a sharp exchange, Scapicchio reminded Broker that she had opposed every defense motion for further discovery.
At issue was evidence from police investigations showing that Mulligan had a personal and business relationship with Police Detectives Kenneth Acerra and Walter Robinson, who in an unrelated case involving drugs, later pleaded guilty to some 40 federal counts of perjury and armed robbery. Among the material sought by the Ellis defense were departmental records on Acerra and Robinson and information regarding Mulligan’s purchase of four private cell phones shared by him, Acerra, and another detective, John Brazil.
Reading aloud Broker’s characterizations of the defense requests for information about these officers as containing “vague, speculative assertions” with “no materiality,” and a quest for “carte blanche production of documents,” Scapicchio asked Broker pointedly: “So this, then, was not part of your policy, ‘When in doubt give it out”? Broker replied she did not have the requested documents in her possession, and “I’m not doing that without a court order…I was of the opinion they weren’t entitled to it.”
Scapicchio says she believes that the admissions after Ellis’s 1995 trial by Mulligan murder investigators Acerra, Robinson, and Brazil to falsifying search warrants and committing a string of Boston drug dealer robberies over a several-year period would have influenced Ellis’s jury verdicts in earlier trials had they been linked to newly uncovered reports of Mulligan’s collusion with the men. She has offered into evidence federal grand jury testimony that three weeks before his murder, Mulligan assisted Acerra and Robinson in robbing two apartments leased by Boston drug dealer Robert Martin; and a report by a 1993 Boston Police Anti-Corruption Unit investigation into charges that Mulligan and Robinson robbed two drug dealers at gunpoint in Brighton in 1991.
A federal investigation resulted in Acerra and Robinson’s convictions in 1998; Brazil turned evidence on his colleagues and escaped charges.
Prosecutor Zabin sought to downplay Mulligan’s complicity with Acerra and Robinson, pointing out that the dead man’s name does not appear on any of Acerra, Robinson, or Brazil’s 1992 or 1993 search warrants, which suggests that the detective may well have believed the 1993 Martin bust resulted from a legitimate search warrant. Zabin also noted that the tip about the 1991 Brighton robbery was given anonymously by a person who declined to assist the investigation further.
Zalkind dismissed that reasoning, calling Mulligan a “rampant criminal” with a “big reputation…the most likely person in the world who’d be involved with Robinson in a crime.” He characterized the Martin robbery disclosure as “the most important of all the material I’ve read,” saying, “If I’d had this in my examination of Robinson in trial, I don’t think we’d be here today.”
Acerra and Robinson were both subpoenaed for the hearings, but did not appear, exercising through their attorneys their rights against self-incrimination.
Scapicchio argues that the criminal ties between Mulligan, Acerra, and Robinson created a conflict of interest for the detectives as investigators and cites two specific actions she alleges they crafted to deflect discovery of their drug robberies.
First, Acerra brought forward eyewitness Rosa Sanchez – the 19-year-old niece of his live-in girlfriend – who claimed she shopped at the Roslindale Walgreens just prior to Mulligan’s murder outside the store and saw Sean Ellis peering into the windows of the detective’s Ford Explorer, which was parked in the fire lane as he slept. Mulligan was shot dead in the vehicle within the hour.
Sanchez was the only witness to identify Ellis, yet she first selected another man’s photo from the police array. Outside the homicide office, she had a private conversation with Acerra and Robinson in Acerra’s car, and moments later she was ushered back into the building by the two detectives. Shown the unchanged array a second time, Sanchez pointed to Ellis’s photo immediately.
Ellis’s trial lawyers motioned to exclude the ID on the grounds Sanchez was coached to identify Ellis by the detective she called “Uncle Kenny.” Testifying under oath, Acerra disavowed a close relationship with Sanchez, saying he saw her only occasionally at family events and didn’t even know her married name. Yet Scapicchio has uncovered a federal subpoena to American Airlines requesting information about two trips Acerra took with Rosa Sanchez and her mother to the Dominican Republic, one of them in October 1994, two months before Acerra’s motion-hearing testimony.
Scapicchio also questioned Acerra’s discovery of Mulligan’s missing cell phone in his SUV several days after the murder – after crime scene technicians had not found it at the scene, and police had declared the phone missing. Several days later, Acerra initiated another search of the vehicle and found the phone in the vehicle’s center compartment between the front seats. The police report stated the phone was there all along, but “no one knew anyone was looking for it.”
Scapicchio alleges that Mulligan’s phone had been “wiped clean” of all phone numbers to remove incriminating evidence and questioned Broker about her asking that Acerra be questioned under oath about the phone when she was prosecuting the case. Broker said she had no memory of this, but did recall asking Boston Police to remove Acerra from the task force. She denied it was due to the cell phone incident and chalked it up to Acerra’s “incompetence.”
Noting that Acerra’s removal by the judge was bitterly opposed by Detective Union President Tommy Montgomery, who wrote to District Attorney Ralph Martin 2d insisting that Acerra be reinstated and that Broker be fired, Scapicchio asked the onetime prosecutor about the Montgomery letter. “I don’t know why the letter was sent,” Broker answered, although she admitted the tone of communications between her and Boston Police was “not good.” (The Boston Globe reported at the time that at a “hastily called meeting” between Broker and Police Commissioner William J. Bratton, an agreement was reached that Broker could stay on if she stopped questioning Acerra and Robinson.
“It was a very difficult time,” Broker said. “A police officer was
killed … my boss [DA Martin] was standing for election … there were strained relations between my office and the Boston Police Department … and all of those things together created the perfect storm.”